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ESR Top Ten Background Check Trends for 2016

Written By ESR News Blog Editor Thomas Ahearn

The shrinking workforce in the United States, decriminalization of nonviolent crimes, protections against liability for employers willing to hire applicants with criminal records, and the rapidly spreading “Ban the Box” movement will all combine to create more job opportunities for reformed ex-offenders in 2016. This is the number 9 trend selected by Employment Screening Resources® (ESR) Founder and CEO Attorney Lester Rosen for the 9th annual ESR Top Ten Background Check Trends for 2016.

“The use of criminal records by employers is not without controversy for the simple reason that it impacts core American values,” says Rosen, author of ‘The Safe Hiring Manual.’ “On one hand, Americans want a safe workplace with qualified and honest workers that are fit and suitable for the job and where the public is not at risk. On the other hand, the U.S. is also a country of second chances where ex-offenders can start over if they made a mistake, and where privacy and fairness are critical.”

How many potential ex-offenders that may seek employment are currently in the United States? A 2011 study titled ‘65 Million Need Not Apply’ conducted by the National Employment Law Project (NELP) estimated that 64.6 million people in the U.S. – representing 27.8 percent or more than one in four adults – had some type of criminal record on file. NELP, a research and advocacy group for low-wage and unemployed workers, has since revised that number up to approximately 70 million U.S. adults.

Rosen explains there is bi-partisan support in Washington DC to address the issue of the United States having the most prisoners of any developed country in the world in both raw numbers and by percentage of the population. The Bureau of Justice Statistics (BJS) found there were more than 1.57 million inmates in federal, state, and county prisons and jails in the U.S. at the end of 2013. The U.S. has roughly five percent of the world’s population but has approximately 25 percent of the world’s prisoners, according to estimates.

A shrinking labor force is also a reality. The November 2015 jobs report released by the Bureau of Labor Statistics (BLS) revealed that the civilian labor force participation rate was at 62.5 percent with 157,301 workers during the month. Labor Force Statistics from the BLS show that the Civilian Labor Force Participation Rate of workers 16 years and over has declined steadily in recent years from the 66.4 percent measured in January 2007 before the Great Recession hit the U.S. economy to 62.5 percent in November 2015.

An article in The Washington Post – ‘The U.S. labor force is still shrinking. Here’s why.’ – explains that the factors behind the worker participation rate dropping in recent years include:

  • The aging “baby boom generation” – Americans born between 1946 and 1964 with an age range between 51 and 69 as of 2015 – is starting to retire meaning fewer eligible American workers.
  • The labor force participation rate for workers between the ages of 16 and 54 fell sharply during the recent recession and still has not fully recovered causing people to give up looking for work.
  • More American workers are on disability insurance and there were approximately 8.8 million Americans – a number that has doubled since 1995 – receiving disability benefits in 2013.

Along with the shirking workforce, other reasons ex-offenders with criminal records may have more job opportunities are the decriminalization of nonviolent crimes, an increased emphasis on rehabilitation for drug users, and the rapidly spreading “Ban the Box” movement that removes the criminal history question from job applications and delays any inquiries into the criminal pasts of job applicants until later in the hiring process after the required knowledge, skills, and abilities for the job are established.

Several states have passed laws helping ex-offenders. As reported earlier by ESR News, a ballot measure passed in California in 2014 – Proposition 47 – requires misdemeanor sentences instead of felony sentences for some drug and property offenses and allows criminal offenders who commit non-serious and non-violent drug and property crimes to have their felony charges reduced to misdemeanors. The Act ensures sentences for people convicted of rape, murder, and child molestation are not changed.

ESR News also reported about states that offer a limitation on employer liability for employers willing to hire ex-offenders. Michigan issues a “certificate of employability” to certain prisoners that may be used as evidence to show duty of care by employers when hiring ex-offenders. Georgia implemented a “Program and Treatment Completion Certificate” to assist ex-offenders with re-entry into society. Texas and Ohio also have laws that offer protections for employers hiring applicants with criminal records.

The “Ban the Box” movement also helps ex-offenders find work by seeking to remove from job applications the check box that asks if applicants have a criminal record. The Ban the Box movement is spreading rapidly in the U.S. and currently includes more than 100 cities and counties as well as 18 states: California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Ohio, Oregon, Rhode Island, Vermont, and Virginia.

“A dual approach to background checks of ex-offenders is reflected nearly daily in news headlines and social media,” says Rosen. “On the same day, we may see a story about the need for more background checks due to workforce violence, or employee theft, or a child who was harmed. The very next story may be about the negative impact of criminal checks where ex-offenders are unfairly prevented from getting a job due to an old offense not relevant to employment or a background check with errors.”

Rosen also cites the growing awareness of the Equal Employment Opportunity Commission (EEOC) ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions’ as helping ex-offenders find work. Updated in April 2012, the Guidance expanded the EEOC’s position on the potential discriminatory impact of criminal records and, along with EEOC enforcement, has added focus on the topic. The EEOC Guidance is at

Rosen has written a whitepaper titled ‘Practical Steps Employers Can Take to Comply with EEOC Criminal Record Guidance’ to help employers understand the updated EEOC Guidance on the use of criminal records. Rosen also helped develop the report ‘Best Practice Standards: The Proper Use of Criminal Records in Hiring’ released by a group of national civil and workers’ rights organizations that addresses the use of criminal records of job applicants by employers during background checks.

Rosen says the involvement of the EEOC, the Ban the Box Movement, and advocacy by worker rights and second chance groups has gone a long way to raise awareness of the need to evaluate applicants with criminal records on the basis of their individual qualifications rather then automatically rejecting them as ex-offenders. “The bottom line is that there is a job for everyone, but not everyone is suited to every job and the definite trend is to make sure everyone has a fair chance to find a job,” says Rosen.

“In 2016 and over the next few years, the reality of a shrinking workforce and the need for more labor, as well as a realization that taxpayers are better off if everyone is gainfully employed, will be long run drivers in getting more and more ex-offenders back in the workforce,” adds Rosen, a frequent speaker about background checks. “Unless we want to spend more money building jails and prisons than schools and hospitals, there is a growing realization society needs to provide everyone an opportunity to work.”

ESR Whitepaper Helps Ex-Offenders find Work

Employment Screening Resources® (ESR), a leading global screening firm, has released a complimentary whitepaper written by ESR Founder and CEO Attorney Lester Rosen titled ‘Ten Critical Steps for Ex-Offenders to Get Back into the Workforce’ to provide helpful insights and suggestions to assist ex-offenders who are seeking to re-enter society through gainful employment. This whitepaper is available at

© 2015 Employment Screening Resources® (ESR) – Making copies or using of any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.


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